Rohrabacher Lauds Closure of Loophole He Used : Congressional privilege: Despite being the only O.C. representative to have sent newsletters at taxpayer expense to non-constituents, he says he always opposed the practice.

WASHINGTON — Last winter, Rep. Dana Rohrabacher took advantage of a carefully designed legal loophole to mail--at taxpayer expense--150,000 newsletters introducing himself to the voters of California's new 45th Congressional District, where he is seeking election this fall.

Despite his two terms in Congress, Rohrabacher (R-Huntington Beach) was probably unfamiliar to most of the voters who found the newsletter in their mailboxes. Every household Rohrabacher targeted was outside his district, the 42nd, which runs from the Palos Verdes Peninsula to Huntington Beach. The 45th stretches from Seal Beach to Newport Beach.

What Rohrabacher and many other members of Congress did was legal. Congressional rules in effect at the time specifically permitted representatives to use their free mailing privilege, known as the frank, to send official mail to voters in newly redrawn congressional districts, even though they were not constituents.

But the practice provoked outrage, both public and private, and inspired several legislative efforts to ban it outright. Now it has ended.

Ten days ago, a panel of three federal judges ruled that permitting congressmen to send franked mail to voters who are not yet constituents is grossly unfair to congressional challengers. As a result, the judges ruled, the practice violates the First and Fifth amendments to the Constitution.

Last week, Rohrabacher, the only Orange County representative who sent franked mail outside his district, said that he was pleased with the court ruling.

"I think we should never have been able to do that," he said. "I think it was not a good policy . . . and although I unilaterally (was) not going to refrain from doing it, I'm happy now that no one is able to do it."

Rohrabacher said he sent two mailings to residents of the 45th District before the June 2 Republican congressional primary, in which he bested two challengers. One mailing was a newsletter, sent in January. The second, which went out later, alerted senior citizens to a special tax seminar sponsored by the congressman.

Rohrabacher said that taking advantage of the regulations permitting out-of-district mailings, even though he opposed the practice, was consistent with his congressional philosophy.

"I fight against things all the time that I lose, and then they become law," Rohrabacher said. "And then I work very hard to make sure my constituents can take advantage of them."

An example, he said, is his assistance to local voters seeking grants from the National Endowment for the Arts, an agency that Rohrabacher has ridiculed and fought hard to shut down.

The franking decision by the U.S. Court of Appeals for the District of Columbia, handed down July 30 in a case filed by the Coalition to End the Permanent Congress and others, applies only to mass mailings addressed to "postal patrons," that is, mail not addressed to specific individuals.

Last week, House Speaker Thomas S. Foley (D-Wash.) said that the House leadership may challenge the decision, in part because it appears to infringe on the privileges of the House.

But the appeal, if it occurs, could be moot.

Hours after the appellate court delivered its decision, the House Committee on Administration voted to ban all out-of-district franked mailings of more than 500 pieces, even those addressed to specific individuals. Foley said that action would remain in force, regardless of the decision on a legal appeal.

The action was a victory for Rep. Bill Thomas (R-Bakersfield), the author of legislation that would have banned the practice.

The congressional franking privilege predates the creation of the Republic. The first Continental Congress in 1775 enacted a law that permitted members to send free mail to inform constituents of their activities. The practice was virtually unregulated for 200 years.

The first set of reforms, enacted in 1973, continued to allow members to send unaddressed mass mailings to residents of new districts in which they might run after the new district boundaries were approved.

In 1990, Congress changed the rules and began requiring specific names and addresses for mailings to potential constituents in redrawn districts. But it also, for the first time, authorized members to mail unaddressed letters to the residents of counties contiguous to the county or counties within their current districts. The second action practically blocked the effect of the first.